20Aug
By: Tom On: August 20, 2019 In: Depositions, International Service of Process Comments: 0
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During a domestic deposition, documents are often shown to a deponent for comment or to refresh the deponent’s memory. At Legal Language, we often assist attorneys who ask about including such documents in the Letter of Request for overseas depositions and the answer is yes; documents to be used in international depositions can be included in the Letter of Request (LOR).

Below is a breakdown of what information a Letter of Request must contain as well as which Articles allow for additional documents to be included.

Letter of Request Information Requirements

Sixty-two countries have signed on to the Hague Evidence Convention (HEC).[1] When evidence needs to be taken with compulsion in one of these countries, in the majority of cases,[2] a Letter of Request must be sent to the specific country’s Central Authority.

Article 3 of the HEC mandates that the LOR contain the following information:

a) the authority requesting its execution and the authority requested to execute it, if known to the requesting authority;
b) the names and addresses of the parties to the proceedings and their representatives, if any;
c)  the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto;
d)  the evidence to be obtained or other judicial act to be performed.

Where appropriate, the Letter shall specify, inter alia

e) the names and addresses of the persons to be examined;
f) the questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined;
g)  the documents or other property, real or personal, to be inspected;
h)  any requirement that the evidence is to be given on oath or affirmation, and any special form to be used;
i)   any special method or procedure to be followed under Article 9.

In addition to these requirements, US courts generally also include a fairly standardized formal introduction at the beginning of the LOR and standardized boiler plate (covering comity and responsibility for costs) at the end of the LOR.

Including Documents to be Used at the Deposition

Nothing in the above list prohibits the inclusion of documents to be used at the time of deposition. Indeed, under Article 1, the scope of a Letter of Request is broad and covers requests “to obtain evidence, or to perform some other judicial act.”

However, “ ‘other judicial act’ does not cover the service of judicial documents or the issuance of any process by which judgments or orders are executed or enforced, or orders for provisional or protective measures.”

The specific authority for the inclusion of documents to be used in an overseas deposition is Article 3(i), which refers to Article 9 of the HEC.

Article 9 states:

The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed. However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties.

Special method “differs from ‘the methods and procedures’ ordinarily applied by the court which receives the letter.”[3] Accordingly, special procedures “[c]an include requests for things that are common in litigation in this country but might not be used in the other countries, e.g., having the witness placed under oath, allowing cross-examination, and permitting the parties to have a verbatim transcript prepared.”[4] Accordingly, special procedures “largely eliminate conflicts between the discovery procedures of the United States and the laws of foreign systems.”[5]

Thus, LOR’s can include a request from the US to have an overseas court order that a witness be shown a document for comment or to refresh the witness’s memory.

Will the Overseas Court Grant Permission?

From a practical point of view the key question is whether the overseas court will allow the witness to be shown the document during the deposition.

When ruling on whether to issue an order concerning the conduct of deposition, the overseas court is to consider its own laws,[6] whether it has the authority to so order, and whether the overseas court’s country’s national security or sovereignty is at issue.

Showing a witness a document in most cases will not raise any of these issues.[7] On the other hand, judges in civil law countries have wide discretion.

If a Letter of Request is well written, overseas judges are often willing to allow US attorneys to take depositions in hotel conference rooms and pursuant to US civil procedure. Any overseas judge who would grant US attorneys the privilege of taking evidence abroad on such liberal terms is unlikely to rule against a witness being shown a document.

How LLS Can Help

At LLS, we have more than 35 years of experience assisting attorneys taking evidence abroad, including arranging for and scheduling overseas depositions and issuing Letters of Requests. Contact us today to speak with a representative and get the help you need.

Call 1-800-788-0450 or simply fill out our free quote form.

Notes

[1] In non-HEC countries, evidence is taken pursuant to a Letter Rogatory. While the HEC rules are well articulated, requests to use documents in a non-HEC country is also possible.
[2] Cf. Aérospatiale v. US District Court for the Southern District of Iowa, 482 U.S. 522 (1987)(authorizing the forum court to take evidence abroad after applying a 5-factor balancing test). Aérospatiale, however, is of little use over non-party individual witnesses because the forum court will rarely be able to assert jurisdiction over such individuals.  
[3] MicroTECHNOLOGIES, LLC v. AUTONOMY, INC., Dist. Court, ND California, Case No. 15-cv-02220-RMW (HRL) 2016.
[4] Knight v. Ford Motor Co., 260 N.J. Super. 110, 115, 615 A.2d 297 (1992).
[5] Aérospatiale, 482 U.S. 522, 560-561.
[6] Article 9 and 11. Article 11 allows an overseas court to consider whether the evidence or special procedure would be privileged in the US. From a practical point of view it is unlikely a US judge would sign off on a Letter of Request wherein a privileged document was shown to a witness.
[7] Notwithstanding the following comment in the text perhaps the only country where showing a document to witness would be an issue is China. In China the taking of evidence is strictly a judicial function. Chinese judges ask for documents, they do not share documents.


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